Sorce v. Parawest Management Real Estate et al

Filing 4

ORDER granting Plaintiff's 2 Motion for Leave to Proceed in forma pauperis. Court dismisses without prejudice the complaint pursuant to 28 USC 1915(e)(2)(B)(ii), and terminates as moot Plaintiff's 3 Motion to Appoint Counsel. Signed by Judge Cynthia Bashant on 9/30/2016. (All non-registered users served via U.S. Mail Service) (jah)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JOSEPH SORCE, JR.,
Plaintiff,

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Case No. 16-cv-2379-BAS(RBB)
ORDER:
(1) GRANTING PLAINTIFF’S
MOTION FOR LEAVE TO
PROCEED IN FORMA
PAUPERIS;

v.
PARAWEST MANAGEMENT
REAL ESTATE, et al.,
Defendants.

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(2) DISMISSING COMPLAINT
WITHOUT PREJUDICE
PURSUANT TO 28 U.S.C. §
1915(e)(2)(B)(ii); AND

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(3) TERMINATING
PLAINTIFF’S MOTION FOR
APPOINTMENT OF
COUNSEL AS MOOT

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[ECF Nos. 2, 3]

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On September 22, 2016, Plaintiff Joseph Sorce, Jr., proceeding pro se,

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commenced this action against Defendants Parawest Management Real Estate,

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Crystle Springs Real Estate, and College Grove Apartments. On the same day,

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Plaintiff also filed a motion for leave to proceed in forma pauperis (“IFP”) and a

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motion for appointment of counsel. (ECF Nos. 2-3.)
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For the reasons discussed below, the Court GRANTS Plaintiff’s motion to

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proceed IFP, DISMISSES WITHOUT PREJUDICE the complaint pursuant to 28

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U.S.C. § 1915(e)(2)(B)(ii), and TERMINATES AS MOOT Plaintiff’s motion for

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appointment of counsel,.

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I.

MOTION FOR IN FORMA PAUPERIS

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The determination of indigency falls within the district court’s discretion. Cal.

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Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), rev’d on other grounds,

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506 U.S. 194 (1993) (holding that “Section 1915 typically requires the reviewing

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court to exercise its sound discretion in determining whether the affiant has satisfied

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the statute’s requirement of indigency”). It is well-settled that a party need not be

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completely destitute to proceed in forma pauperis. Adkins v. E.I. DuPont de Nemours

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& Co., 335 U.S. 331, 339-40 (1948). To satisfy the requirements of 28 U.S.C. §

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1915(a), “an affidavit [of poverty] is sufficient which states that one cannot because

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of his poverty pay or give security for costs . . . and still be able to provide himself

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and dependents with the necessities of life.” Id. at 339. At the same time, however,

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“the same even-handed care must be employed to assure that federal funds are not

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squandered to underwrite, at public expense, . . . the remonstrances of a suitor who

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is financially able, in whole or in material part, to pull his own oar.” Temple v.

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Ellerthorpe, 586 F. Supp. 848, 850 (D.R.I. 1984).

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District courts, therefore, tend to reject IFP applications where the applicant

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can pay the filing fee with acceptable sacrifice to other expenses. See e.g., Stehouwer

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v. Hennessey, 841 F. Supp. 316, 321 (N.D. Cal. 1994), vacated in part on other

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grounds, Olivares v. Marshall, 59 F.3d 109 (9th Cir. 1995) (finding that a district

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court did not abuse its discretion in requiring a partial fee payment from a prisoner

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who had a $14.61 monthly salary and who received $110 per month from family).

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Moreover, “in forma pauperis status may be acquired and lost during the course of

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litigation.” Wilson v. Dir. of Div. of Adult Insts., No. CIV S-06-0791, 2009 WL
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311150, at *2 (E.D. Cal. Feb. 9, 2009) (citing Stehouwer, 841 F. Supp. at 321); see

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also Allen v. Kelly, 1995 WL 396860, at *2 (N.D. Cal. June 29, 1995) (holding that

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a plaintiff who was initially permitted to proceed in forma pauperis should be

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required to pay his $120 filing fee out of a $900 settlement). In addition, the facts as

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to the affiant’s poverty must be stated “with some particularity, definiteness, and

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certainty.” United States v. McQuade, 647 F.2d 938, 940 (9th Cir. 1981).

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Having read and considered Plaintiff’s application, the Court finds that

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Plaintiff meets the requirements in 28 U.S.C. § 1915 for IFP status. Plaintiff is an

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unemployed 44-year-old receiving $254 monthly for “general relief.” (IFP Mot. ¶¶

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1-2, 12.) No other sources of income or assets are listed. (Id. ¶¶ 1-2, 5-6.) Plaintiff’s

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expenses amount to almost $400 per month. (Id. ¶ 8.) Plaintiff’s expenses and debt

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are clearly greater than his current sources of income. Consequently, the Court finds

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that requiring Plaintiff to pay the court filing fees would impair his ability to obtain

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the necessities of life. See Adkins, 335 U.S. at 339.

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In light of the foregoing, the Court GRANTS Plaintiff’s application for leave

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to proceed in forma pauperis. (ECF No. 2.) However, if it appears at any time in the

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future that Plaintiff’s financial picture has improved for any reason, the Court will

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direct Plaintiff to pay the filing fee to the Clerk of the Court. This includes any

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recovery Plaintiff may realize from this suit or others, and any assistance

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Plaintiff may receive from family or the government.

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II.

SUA SPONTE SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2)

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Notwithstanding payment of any filing fee or portion thereof, a complaint filed

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by any person proceeding in forma pauperis pursuant to 28 U.S.C. § 1915(a) is

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subject to a mandatory and sua sponte review and dismissal by the court to the extent

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it is “frivolous, malicious, fails to state a claim upon which relief may be granted, or

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. . . seeks monetary relief against a defendant who is immune from such relief[.]”

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Lopez v. Smith, 203 F.3d 1122, 1141 n.6 (9th Cir. 2000) (en banc); see also 28 U.S.C.
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§ 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam)

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(“[T]he provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”).

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Section 1915(e)(2) mandates that the court reviewing a complaint filed pursuant to

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the IFP provisions of § 1915 make and rule on its own motion to dismiss before

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directing that the complaint be served by the U.S. Marshal pursuant to Federal Rule

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of Civil Procedure 4(c)(3). Lopez, 203 F.3d at 1127 (“[S]ection 1915(e) not only

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permits, but requires a district court to dismiss an in forma pauperis complaint that

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fails to state a claim.”); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.

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1998) (noting the “the language of § 1915(e)(2)(B)(ii) parallels the language of

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Federal Rule of Civil Procedure 12(b)(6)”).

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As currently pleaded, Plaintiff’s one-page, handwritten complaint is subject to

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sua sponte dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii). The only wrongful conduct

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Plaintiff describes are: (1) Defendants’ failure to accommodate an unspecified

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disability by renting a “downstairs” apartment unit; and (2) unspecified harassment,

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though the harassment may be the act of calling law enforcement without a proper

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reason (“the defendant are [sic] abusing the system by calling the police to my

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house”).

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Assuming the ADA applies, “[t]he question whether a particular

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accommodation is reasonable ‘depends on the individual circumstances of each case’

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and requires a fact-specific, individualized analysis of the disabled individual’s

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circumstances and the accommodations that might allow him to meet the program’s

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standards.” Vinson v. Thomas, 288 F.3d 1145, 1154 (9th Cir. 2002). However, the

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circumstances described in the complaint are too vague for the Court to permit this

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claim to proceed. See 28 U.S.C. § 1915(e)(2)(B)(ii). The facts provided are

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inadequate for the Court to conclude that Plaintiff states a plausible claim for relief.

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See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly,

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550 U.S. 544, 556 (2007)).

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Plaintiff’s harassment claim is also ambiguous. Assuming Plaintiff asserts a

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harassment claim under California law, California’s Code of Civil Procedure § 527.6

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may apply. Section 527.6 defines harassment as the “unlawful violence, a credible

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threat of violence, or a knowing and willful course of conduct directed at a specific

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person that seriously alarms, annoys, or harasses the person, and that serves no

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legitimate purpose.” It adds that “[t]he course of conduct must be such as would cause

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a reasonable person to suffer substantial emotional distress, and must actually cause

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substantial emotional distress to the petitioner.” Plaintiff alleges that police are sent

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to “knock on [his] door 20 times in a month,” which the Court suspects may qualify

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as annoying or harassing conduct if done without a legitimate purpose, but no facts

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are provided describing specific instances or whether Plaintiff sustained “substantial

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emotional distress.” And it remains unclear whether § 527.6 is even the law Plaintiff

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seeks to invoke in bringing his harassment claim. That effectively means Plaintiff

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fails to plead the claim with sufficient specificity to “give the defendant[s] fair notice

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of what the . . . claim is and the grounds upon which it rests.” See Twombly, 550 U.S.

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at 555.
In sum, Plaintiff fails to state a plausible claim upon which relief may be

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granted. See 28 U.S.C. § 1915(e)(2)(B)(ii); Iqbal, 556 U.S. at 678.

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III.

CONCLUSION & ORDER

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In light of the foregoing, the Court GRANTS Plaintiff’s motion to proceed

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IFP (ECF No. 2), DISMISSES WITHOUT PREJUDICE the complaint pursuant

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to 28 U.S.C. § 1915(e)(2)(B)(ii), and TERMINATES AS MOOT Plaintiff’s motion

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for appointment of counsel (ECF No. 3).

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IT IS SO ORDERED.

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DATED: September 30, 2016

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